Chapter 5: Service of Process in Child Protective Proceedings

In this chapter. . .

This chapter discusses the general requirements for issuing and serving summonses and notices of hearings in child protective proceedings. The statutory requirements for service in termination of parental rights proceedings are particularly important because a failure to meet those requirements renders the proceedings void.

This chapter includes a discussion on waiving notice of hearing or service of process and subsequent services.

This chapter also discusses subpoenas, proof of service, judgment orders, and adjournments in child protective proceedings.

5.1Issuance and Service of Summons in Child Protective Proceedings

After a petition is filed, the court may:

(1) dismiss the petition; or

(2) issue a summons “reciting briefly the substance of the petition, and requiring the person or persons who have custody or control of the child, or with whom the child may be, to appear personally and bring the child before the court at a time and place stated[.]” MCL 712A.12.

A summons may be issued and served on a party before any juvenile proceeding. MCR 3.920(B)(1). The parties in a child protective proceeding include  “the petitioner, child, and respondent” and “the parent, guardian, or legal custodian.”1 MCR 3.903(A)(19)(b)(i)-(ii).

Note: “‘Parent’ means the mother, the father as defined in MCR 3.903(A)(7), or both, of the minor. It also includes the term ‘parent’ as defined in MCR 3.002(20).”2 MCR 3.903(A)(18). MCR 3.002(20) defines an Indian child’s parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the putative father if paternity has not been acknowledged or established.”

“‘Guardian’ means a person appointed as guardian of a child by a Michigan court pursuant to MCL 700.5204 or [MCL] 700.5205, by a court of another state under a comparable statutory provision, or by parental or testamentary appointment as provided in MCL 700.5202, or a juvenile guardian appointed pursuant to MCL 712A.19a or MCL 712A.19c.” MCR 3.903(A)(11).

 “‘Legal Custodian’ means an adult who has been given legal custody of a minor by order of a circuit court in Michigan or a comparable court of another state or who possesses a valid power of attorney given pursuant to MCL 700.5103 or a comparable statute of another state. It also includes the term ‘Indian custodian’ as defined in MCR 3.002(15).”3 MCR 3.903(A)(14). An Indian custodian is “any Indian person who has custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control have been transferred by the child’s parent.” MCR 3.002(15).

“An order directed to a parent or a person . . . is not effective and binding on the parent or other person unless opportunity for hearing is given by issuance of summons . . . as provided in [MCL 712A.12 and MCL 712A.13] and until a copy of the order, bearing the seal of the court, is served on the parent or other person as provided in [MCL 712A.13].”4 MCL 712A.18(4).

A.Contents of Summons

If the court issues a summons, the summons must “direct the person to whom it is addressed to appear at a time and place specified by the court and must:

(a) identify the nature of the hearing;

(b) explain the right to an attorney and the right to trial by judge or jury, including, where appropriate, that there is no right to a jury at a termination hearing;

(c) if the summons is for a child protective proceeding, include notice that the hearings could result in termination of parental rights; and

(d) have a copy of the petition attached. The confidential case inventory required by MCR 3.931(A) and MCR 3.961(A) shall not be served on any party.”5 MCR 3.920(B)(3).

B.Service Requirements

“In a child protective proceeding, a summons must be served on any respondent and any nonrespondent parent.” MCR 3.920(B)(2)(b). A person who is not a respondent, but is the child’s guardian or legal custodian must also be notified of the petition and served with notice of hearing.6 Id.; MCL 712A.12.

Note: MCR 3.903(C)(12) defines respondent as “the parent,[7] guardian,[8] legal custodian,[9] or nonparent adult[10] who is alleged to have committed an offense against a child.” Respondent, in termination of parental rights proceedings, does not include “other persons to whom legal custody has been given by court order, persons who are acting in the place of the mother or father, or other persons responsible for the control, care, and welfare of the child.” MCR 3.977(B).11

MCR 3.903(C)(8) defines nonrespondent parent as “a parent who is not named as a respondent in a petition filed under MCL 712A.2(b).”

A noncustodial parent must be personally served with notice of hearing and a copy of the petition.12 MCL 712A.12; In re Miller (Julie), 182 Mich App 70, 73 (1990).

A summons may also be served on a person having physical custody of the child with the direction to appear with the child for a hearing. MCR 3.920(B)(2)(b). In addition, “[a] [s]ummons may be issued requiring the appearance of any other person whose presence, in the opinion of the judge, is necessary.” MCL 712A.12.

The statutory requirements for issuance and service of summonses to custodial parents, or notice of the petition and the time and place of a hearing to a noncustodial parent, are jurisdictional, which means that if they are not fulfilled, an appellate court may declare all proceedings in a case void. In re Brown (Carrie), 149 Mich App 529, 534-542 (1986) (because the jurisdictional requirement in MCL 712A.12, requiring the respondent be personally served, was not complied with, jurisdiction was never established and the Court of Appeals held that orders arising out of the proceedings were void). Cf. In re Andeson, 155 Mich App 615, 618-619 (1986) (proceedings were not void when the respondent-parent was properly served with a summons before the adjudicative hearing, the hearing was adjourned, and the respondent-parent was later mailed a notice of hearing but failed to appear).

“Once personal jurisdiction [is] established [by properly serving the respondent with the original summons and petition,] . . . petitioner’s preparation and filing of [an] amended petition[] d[oes] not invalidate [] personal jurisdiction that ha[s] already been obtained” even when the respondent is not served with the amended petition. In re Dearmon/Harverson-Dearmon, 303 Mich App 684, 693 (2014) (“[b]ecause [the] respondent was properly served with the initial petition and an accompanying summons,” personal jurisdiction was established[ and] it did not evaporate merely upon the filing of the amended petitions”).

A party’s presence at a hearing does not cure a jurisdictional error. In re Brown (Carrie), 149 Mich App at 541.

Defective service of process on another party to the proceedings does not render those proceedings void with respect to a person to whom service was required. In re Terry, 240 Mich App 14, 21 (2000).

1.Manner of Service

The petitioner is “charged with providing [sic] that service of process is accomplished in accordance with the court rules.” In re Adair, 191 Mich App 710, 715 (1991). See also MCL 712A.13 (judge may designate peace officer or other suitable person to serve summons, notice, or court orders).

Where practicable, service of a summons should be made by personal service. MCL 712A.13. However, if the judge finds that personal service is impracticable, he or she may order service by registered mail or publication, or both.13 Id. See also MCR 3.920(B)(4), which states:

“(a) Except as provided in [MCR 3.920(B)(4)(b)], a summons required under [MCR 3.920(B)(2) (for child protective proceedings)] must be served by delivering the summons to the party personally.

(b) If the court finds, on the basis of testimony or a motion and affidavit, that personal service of the summons is impracticable or cannot be achieved, the court may by ex parte order direct that it be served in any manner reasonably calculated to give notice of the proceedings and an opportunity to be heard, including publication.

(c) If personal service of a summons is not required, the court may direct that it be served in a manner reasonably calculated to provide notice.”

Note: Violations of statutory notice provisions constitute jurisdictional defects, while violations of court rule requirements do not. In re Mayfield, 198 Mich App 226, 230-231 (1993). See also In re SZ, 262 Mich App 560 (2004), which discussed a conflict between MCR 3.920(B)(4)(b) (requires court to make its decision to order substitute service “on the basis of testimony or a motion and affidavit”) and MCL 712A.13 (allows court to order substitute service if it “is satisfied that it is impracticable” to personally serve the summons). In In re SZ, supra at 564-565, the respondent argued that the trial court improperly allowed service by publication when it failed to comply with the requirement in MCR 3.920(B)(4)(b) that the court’s finding that personal service is impracticable or cannot be achieved be based on “testimony” or “a motion and affidavit,” and, therefore, lacked jurisdiction over her. The Court of Appeals concluded that MCL 712A.13, not MCR 3.920, controls the determination of whether a court has established jurisdiction over a respondent:

“We believe that MCL 712A.13 reflects our Legislature’s policy considerations concerning the necessary requirements for obtaining jurisdiction over a parent or guardian of a juvenile. Because the issue of service is a jurisdictional one, the statutory provision governs. The plain language of the statute contains no specific requirements concerning what types of evidence a court must consider in determining whether substitute service is indicated, or the form in which the evidence must be received. By its silence, MCL 712A.13 permits a court to evaluate evidence other than testimony or a motion and affidavit when determining whether notice can be made by substituted service. We believe that the . . . court rule requirements . . . found in MCR 3.920(B)(4)(b) are restrictions affecting jurisdiction in matters that are usually time-sensitive and for which the Legislature’s policy is to seek prompt resolution for the sake of the juvenile involved and, as such, conflict with MCL 712A.13. Therefore, the statute prevails.” In re SZ, 262 Mich App at 568.

“While MCL 712A.13 allows for alternative methods of service of process, it still requires that the trial court first determine that personal service is impracticable.” In re Adair, 191 Mich App at 714 (trial court erred by ordering notice by publication before determining whether the Department of Health and Human Services (DHHS) made reasonable efforts to locate the respondent-mother for service by registered mail). “In a child protective proceeding, a parent of a child is entitled to personal service of the summons and notice of proceedings.” In re Lovitt, ___ Mich App ___, ___ (2024). In Lovitt, the trial court plainly erred by proceeding with a termination hearing in respondent’s absence where there was no evidence that respondent had been personally served with the summons and supplemental petition and no evidence that alternate service was requested or granted. Id. at ___. The Court noted that “it [was] difficult to conclude from the record how respondent was provided notice, if at all, of the . . . termination hearing.” Id. at ___. “Because respondent was not served in accordance with the requirements of MCL 712A.13 and the court rules, the trial court lacked jurisdiction to terminate her parental rights . . . .” Lovitt, ___ Mich App at ___. Motions for substituted service must show that personal service of process cannot reasonably be made, and that the substituted method of service is the best method available to provide notice. Krueger v Williams, 410 Mich 144, 167-168 (1981). A motion for substituted service should contain sufficient facts to allow the court to determine what specific efforts were made to serve process and why the substituted method should be used. Krueger, supra at 168-170.

2.Time of Service

MCL 712A.13 provides that “[i]t shall be sufficient to confer jurisdiction if:

(1) personal service is effected at least 72 hours before the date of hearing;

(2) registered mail is mailed at least five days before the date of hearing if within the state and 14 days if outside the state;

(3) publication is made once in some newspaper printed and circulated in the county in which [the] court is located at least 1 week before the time fixed in the summons or notice for the hearing.”14 MCL 712A.13.

Failure to meet the requirements of MCL 712A.13 may constitute a jurisdictional defect rendering the proceedings void. In re Mayfield, 198 Mich App at 230-232.

MCR 3.920(B)(5) provides additional time requirements for service of a summons:

“(a) A summons shall be personally served at least:

(i) 14 days before hearing on a petition that sets to terminate parental rights or a permanency planning hearing,

(ii) 7 days before trial or a child protective dispositional review hearing, or

(iii) 3 days before any other hearing.

(b) If the summons is served by registered mail, it must be sent at least 7 days earlier than [MCR 3.920(B)(5)(a)] requires for personal service of a summons if the party to be served resides in Michigan, or 14 days earlier than required by [MCR 3.920(B)(5)(a)] if the party to be served resides outside of Michigan.

(c) If service is by publication, the published notice must appear in a newspaper in the county where the party resides, if known, and, if not, in the county where the action is pending. The published notice need not include the petition itself. The notice must be published

at least once 21 days before a hearing specified in [MCR 3.920(B)(5)(a)(i)],

14 days before trial or a hearing specified in [MCR 3.920(B)(5)(a)(ii)], or

7 days before any other hearing.”

C.Subsequent Notices After Failure to Appear

“When persons whose whereabouts are unknown fail to appear in response to notice by publication or otherwise, the court need not give further notice by publication of subsequent hearings, except a hearing on the termination of parental rights.” MCR 3.921(E).

Note: If a person fails to appear without reasonable cause after being summoned to do so, he or she may be held in contempt of court and punished accordingly. MCL 712A.13.

1    If the child is of Indian heritage, additional requirements must be followed. See Chapter 19.

2    Formerly MCR 3.002(10).

3    Formerly MCR 3.002(7).

4    This rule is significant for purposes of collecting reimbursement of the costs of care and service (see Section 14.2), and for other orders affecting adults under MCL 712A.6 and MCL 712A.6b (see Section 4.10).  See SCAO guidelines for court-ordered reimbursement.

5    See SCAO form Summons: Order to Appear (Child Protective Proceedings).

6    See Section 5.2 for information on notice of hearings.

7    “‘Parent’ means the mother, the father as defined in MCR 3.903(A)(7), or both, of the minor. It also includes the term parent as defined in MCR 3.002(20).” MCR 3.903(A)(18). MCR 3.002(20) defines an Indian child’s parent as “any biological parent or parents of an Indian child or any Indian person who has lawfully adopted an Indian child, including adoptions under tribal law or custom. It does not include the putative father if paternity has not been acknowledged or established.” MCR 3.002(20) was formerly MCR 3.002(10).

8    MCR 3.903(A)(11) defines a guardian as “a person appointed as guardian of a child by a Michigan court pursuant to MCL 700.5204 or [MCL] 700.5205, by a court of another state under a comparable statutory provision, or by parental or testamentary appointment as provided in MCL 700.5202, or a juvenile guardian appointed pursuant to MCL 712A.19a or MCL 712A.19c.”

9    “‘Legal Custodian’ means an adult who has been given legal custody of a minor by order of a circuit court in Michigan or a comparable court of another state or who possesses a valid power of attorney given pursuant to MCL 700.5103 or a comparable statute of another state. It also includes the term ‘Indian custodian’ as defined in MCR 3.002(15).” MCR 3.903(A)(14). An Indian custodian is “any Indian person who has custody of an Indian child under tribal law or custom or under state law, or to whom temporary physical care, custody, and control have been transferred by the child’s parent.” MCR 3.002(15) (formerly MCR 3.002(7)).

10    A nonparent adult is a person 18 years old or older who, regardless of the person’s domicile, meets all of the following criteria in relation to a child over whom the court takes jurisdiction under MCL 712A.2(b): (1) The person has substantial and regular contact with the child; (2) The person has a close personal relationship with the child’s parent or with a “person responsible for the child’s health or welfare”; and (3) The person is not the child’s parent or a person otherwise related to the child by blood or affinity to the third degree. MCL 712A.13a(1)(h)(i)–(iii); MCR 3.903(C)(7)(a)-(c).

11    “[MCR 3.977] applies to all proceedings in which termination of parental rights is sought.” MCR 3.977(A)(1).

12    As a useful tool to guide the court through the procedures of finding and notifying a noncustodial parent during a child protective proceeding, the State Court Administrative Office (SCAO) developed the Michigan Absent Parent Protocol: Identifying, Locating, and Notifying Absent Parents in Child Protective Proceedings.

13    See SCAO form JC 46, Motion for Alternative Service.

14    Sufficient “lead time” for the publication of notices in newspapers should be considered. Depending on the county, a newspaper may require as much as two weeks’ “lead in” before publication.